2:15 pm

Wed June 25, 2014

High Court Ruling On Search Warrants Is Broader Than Cellphones

Bold. Landmark. Sweeping. Those were the words experts on all sides used Wednesday to describe the U.S. Supreme Court's unanimous ruling that police must obtain a warrant before searching a cellphone at the time of an arrest.

The decision came in two cases where law enforcement used information obtained from a cellphone without a warrant to win a conviction.

Writing for the unanimous court, Chief Justice John Roberts said that the answer to the question of what police must do before searching a cellphone at the time of an arrest is "simple — get a warrant."

One of the seeds of the American Revolution, he noted, was the "general warrant" used by the British to rummage through colonists' papers and belongings. To ensure that such searches would not happen in the new republic, the founders adopted the Fourth Amendment ban on unreasonable searches, and the general rule adopted by the courts has been that a search is not reasonable unless police obtain a warrant.

Granted, there are exceptions to that rule, the chief justice observed. During arrest, no warrant is necessary to search for weapons to protect police safety, and police may search to prevent evidence from being destroyed — for example, to prevent drugs from being flushed down the toilet.

But the search of a cellphone, wrote Roberts, is entirely different because of the amount and type of material stored there. A person's entire life can be reconstructed with photos, videos, notes, call records, medical and financial information, and location information about where the cellphone owner has been. Much of this information simply did not exist before the digital age, Roberts noted.

"It is true that this decision will have some impact on the ability of law enforcement to combat crime," wrote Roberts. After all, criminal rings use cellphones to facilitate their criminal enterprises.

The only exception to the warrant requirement for cellphone searches is in case of a true emergency — a kidnapping or a ticking bomb, for example. But those will be the rare exceptions. "Privacy," said Roberts, "comes at a cost." As such, "Our holding, of course, is not that the information on a cell phone is immune from search." Rather, it is "that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest."

"This is a bold endorsement of digital privacy," said George Washington University Law School professor Orin Kerr, who specializes in technology and the law. "It's not a close call here: The court says the government has to get a warrant."

Some 12 million people are arrested each year, some for very minor offenses. Until now, police have often searched their cellphones. But as Timothy O'Neill of John Marshall Law School in Chicago observed, "What the opinion does is make a very bold statement that the mere fact that you're arrested does not mean the police have the right to rummage through your smartphone."

"This is not just a phone case," said Mark Eckenwiler, former deputy chief of the Computer Crime Section at the Department of Justice. "This is really a digital evidence case." The decision applies to laptops, tablets and all manner of electronic devices. This was a pretty sweeping decision, leaving little wiggle room for law enforcement. "There's not a lot of ambiguity there," he said.

Eckenwiler sees trouble ahead as law enforcement seeks to adjust. "If they don't flip out," he said, "then I think they're really not looking at the scope of the issues they have to deal with in the coming weeks, months and years." The future implications are uncertain, he said, because "there are things that don't even exist yet that we can't even imagine, well beyond cellphones."

But it is not the future that worries Eckenwiler most. He said he's worried about the tens of thousands of cases that are in the pipeline — cases in which no charges have yet been brought, or cases already at the trial or appeal stage, cases in which evidence has been obtained through warrantless cellphone searches.

It is also not certain what the decision's implications are for the government's collection of other data for national security purposes. The court's opinion has hints both ways. Eckenwiler pointed to a footnote that seems to exclude such information from the reach of Wednesday's opinion.

But Marc Rotenberg, president of the Electronic Privacy Information Center, has a different view. "The opinion will have some bearing in the cases that are being litigated around the NSA's bulk record collection program," he anticipated.

The Wednesday opinion in two cases coupled with a 2012 decision, however, sent a strong message about how the Supreme Court is interpreting the 1789 Constitution in the modern digital world.

In that 2012 decision, the court — again unanimously — ruled that police cannot put a GPS tracking device on a suspect's car without a warrant. Looking at this trio of cases, George Washington's Kerr notes that makes "27 votes for the defense and zero for the government when the court is applying the Fourth Amendment to new technology." That trend, Kerr said, is "very surprising."

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Transcript

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From NPR News this is ALL THINGS CONSIDERED. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block. Bold, landmark, sweeping - those are among the words experts on all sides are using to describe one of the decisions handed down today by the Supreme Court. The unanimous ruling says that police must obtain a warrant before searching a cell phone at the time of an arrest. The decision came in two cases -one state, one federal - where law enforcement used information obtained from a cell phone without a warrant to win a conviction. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In the California case, a cell phone search after a traffic stop led to a conviction for attempted murder. In the federal case, a cell phone search after a routine drug arrest led to more serious charges. Both searches, the Supreme Court said, violated the Fourth Amendment ban on unreasonable searches.

Writing for the unanimous court, Chief Justice John Roberts said that the answer to the question of what police must do before searching a cell phone at the time of an arrest is simple - get a warrant. One of the seeds of the American Revolution, he noted, was the general warrant used by the British to rummage through anyone's papers and belongings. To ensure that such searches would not happen in the new Republic, the founders adopted the Fourth Amendment ban on unreasonable searches. And the general rule since then is that a search is not reasonable unless police obtained a warrant.

There are exceptions to that rule, the Chief Justice observed. At an arrest, no warrant is necessary to search for weapons to protect police safety and police may search to prevent evidence from being destroyed, for example, to prevent drugs from being flushed down the toilet. But a search of a cell phone, said Robert, is entirely different because of the amount and type of material stored there. A person's entire life can be reconstructed through photos, videos, notes, call records, medical and financial information, location tracks of where the cell phone carrier has been. Much of this information simply didn't exist before the digital age, Roberts noted.

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crimes, said the Chief Justice. After all, criminal rings use cell phones to facilitate their criminal enterprises. The only exception to the warrant requirement is in case of true emergency - a kidnapping or a ticking bomb, for example. But those will be the rare exceptions. Privacy, said Roberts, comes at a cost. Our holding is not that the information on a cell phone is immune from search, it's that police must get a warrant to search the cell phone even when the phone is seized at the time of an arrest. George Washington University professor Orin Kerr specializes in technology and the law.

ORIN KERR: This is a bold endorsement of digital privacy. It's not a close call here. The court - 9-0 - says government has to get a warrant.

TOTENBERG: Timothy O'Neill of John Marshall Law School in Chicago knows that there are some 12 million people arrested each year - some for very minor offenses.

TIMONTHY O'NEILL: And what this opinion does is make a very bold statement that the mere fact that you're arrested does not mean the police have the right to rummage through your smart phone.

MARK ECKENWILER: This is not just a phone case. This really is a digital evidence case.

TOTENBERG: Mark Eckenwiler served as chief of the computer crime section at the Justice Department.

ECKENWILER: It is a landmark. That this was a pretty sweeping decision really lays down a marker for law enforcement.

ECKENWILER: If they don't flip out, then I think you're not really looking at the scope of the issues they have to deal with in the coming weeks and months and years.

TOTENBERG: It's not the future that worries them most but the tens of thousands of cases that are in the pipeline today, cases in which no charges have yet been brought or cases that are still at trial or on appeal, in which evidence has been obtained through warrantless cell phone searches. As for the future, the implications are less certain. Again, Mark Eckenwiler.

ECKENWILER: There's things that don't even exist yet, that we can't imagine, well beyond cell phones.

TOTENBERG: And what about implications for the government's collection of other data for national security purposes? The court's opinion has hints both ways. Eckenwiler, previously of the Justice Department, points to a footnote that seems to exclude such information from today's opinion. But Mark Rotenberg of the Electronic Privacy Information Center has a different view

MARK ROTENBERG: I do think that going forward, the opinion will have some bearing on the cases that are being litigated around the NSA's bulk record collection program.

TOTENBERG: Today's opinion in two cases coupled with a 2012 decision, however, does send a strong message. In that 2012 ruling the court, again unanimously, said that police cannot put a GPS tracking device on a suspect's car without a warrant. Professor Kerr.

KERR: That's three cases altogether - 27 votes for the defense, zero votes for the government - when the court is applying the Fourth Amendment to new technologies. It's very surprising.

TOTENBERG: So the Supreme Court today finds that the 1789 Constitution speaks loudly when it comes to the modern digital world.